Monday, December 15, 2014

REALTY >>>SC in re Nahalchand -A Revisit >


 Aug '15

Test of marketability satisfies on being shown that product is capable of being sold and actual sale is irrelevant- SC


Cross refer- Old Blogs on Realty -  'Final Conveyance'


Dec 24


BKC Internal Roads illegally converted into Car Parking Zones

Dec 21

 Society Dues recoverable only within three years



 Real estate is no substitute for equity

Dec 19

Can Society transfer the Share Certificate in the name of the nominee in spite of objections from legal heirs?

>>>> › ... › Constitutional Law › Constitution
Hemant Agarwal Mumbai : 9820174108
 Ref. EXPERTS'  mutually contradicting 'views' ?

 97th Constitutional Amendment | Ramesh Prabhu on ...




Flat income tax of 8% chargeable for real estate business if no books kept : Delhi High Court

The dispute is seen to have been,rather permitted to be, pursued unto the HC, presumably on the only possible ground that there is a question of law, of a substantial nature, requiring to be adjudicated by the court.The point rightly made and conceded, however, is that section 44AD, being the only provision of law invoked, has, in terms, no application to the given case. On that premise, the grave doubt that is sure to have arisen in anyone’s mind, and cries aloud for enlightenment, is this: In the given so also like cases, should not the dispute be given a quietus at the stage of, not allowed to travel beyond, the ITAT, being the last fact finding authority. Over to ‘experts’ at large for useful deliberation!


Indraprastha Enclave in Borivali ( E)

  Justice BH Marlapalle, in a decision delivered on April 25...

When the flat purchaser comes in Sathe Khat or/ Agreement to Sell (which must have to register under MOFA/ Apartment Act) with the builder and pay the money to builder, builder can not alter/change project plan. There are clear liabilities defined in both (MOFA/Apartment Act) laws for Builders and purchaser. There is clear difference defined in flat and apartment in respective law.

<<  In this regard, the MCS by law no 78 and 79 which recognize and approve parking to a flat purchase if it is sold or allotted by builder. Is under vanishing state. The State Govt. is already started amend this bye-law. Because this by-law itself is contravention to the provisions of MOFA. But all this is pending as the case is in SC, wait and lets hope for the best.

If SC keeps judgment of Bombay high court as final judgment and passes the order then we will see new tussle between car parking purchaser/allottee and other who don’t have space to park their cars.

 <> see markeds- Makes for a confusing reading !

< For a counter view,- addressing the proposition that why (A) both the laws require to be read together, not in isolation, and (B) that if so done, the mentioned difference in the definition  is bound to fade into insignificance,- with supporting reasoning, attention is invited to the published analytical study (critique) in public domain on the previous SC Judgment / Ruling (in re. Panchali Hsg.) settling the very same issue as now by the HC.    

Society can cancel parking slot allotted by Builder

 December 17, 2014 at 1:42 PM

WRT the initial 2 paras, raising a question and giving the answer "NO", and the reasoning given, in one's conviction, offends, besides common sense, also the very scheme of things as embodied in the MOFA, rwt  MAOA, and the following admitted premises / legal  position: 

1. Until the crucial formality of “final conveyance”, has been formally effected, the property in the “land and building” remains vested with the promoter. The fact that as held by court , until such conveyance, the liability to property tax continues to be that of the promoter itself goes to fortify the stated position.
2. The viewpoints put across and canvassed, in sufficient detail, in the published analytical study of (critique on) the SC judgment in re. Panchali Hsng. Society case, -it could be urged/ submitted, -are not without substance and force, but are backed up by sound reasoning given. Further, in any view, as brought out therein, the said SC judgment cannot rightly be regarded to have so conclusively decided/adversely clinched, as to be cited/relied on as a binding authority/precedent, on the basic issue namely, the promoter’s right to ‘sell’/ ‘convey’ , along with ‘flat’ , as appurtenant thereto,  the car parking rights to buyer in the ‘limited area’, as carved out of the common areas/facilities.

As of now, there is no gainsaying that, in the further possible proceedings in Indraprastha case itself, or in any other case ,  the apex court  may be called upon to and hence adjudicate, fully and finally the  point (s) of issue, having in mind the attendant  ramifications, from all angles.    
Now, it is left to the advising/representing lawyers, and their individual expertise and competence,  to catalyse judicial opinion and assist the court in coming  to a righteous  conclusion, once for all.

Pending a close reading of the referred judgment, one feels strongly that the verdict of the HC appears to have merely endorsed /reiterated what has been earlier ruled by the SC. The ruling has turned entirely on the factual matrix in the given case, -”no builder can sell parking space under stilts SEPARATELY”, with every emphasis to be placed on ‘SEPARATELY’. So much so, the write-up badly titled, is seen to be so truncated as to be misleading. For an appreciation of the merits of the point made, recommended to look up and mindfully read the critique wrt the SC judgment, published and available in public domain. And then, if agreed and satisfied, for sake of the readers’ ultimate benefit/ the common good  of the 'society' at large, come out with a supplementary write-up.


Cross Refer

The Aliakmon and Title to Sue: a recent Bombay decision

·  Learned Advocate Mr. Desai attempted to distinguish the authority contending that the subject of dispute before Hon’ble High Court was about the stilt parking or garage, which is not the dispute before us.  The authorities of superior courts cannot be distinguished by hair splitting. The Hon’ble High Court has considered legal provisions and has observed that under the MOFA Act Developer’s right is restricted to the extent of disposal of flat, shop and/or garages which means that only premises which is included in the FSI can be sold by the Developer/Promoter thus any space beyond FSI cannot be sold and particularly under the name of parking space.

·  In the present case, the parking space is sold to the applicant merely by issuing a letter, which does not transfer any right as required under provisions of Transfer of Property Act.  The Builder cannot sell any immoveable property without registered Sale Deed and still retain right, title and interest therein to be transferred to the Society.  Once society is registered the Builder does not remain owner thereof and therefore, purchaser of parking slot without Registered Deed is no owner in the eye of law and Society may decline to take cognizance of his claim of purchase.



December 17, 2014 at 9:09 AM

OFFHAND (To share own independent thoughts, for the ‘common good’)
Though not so stated, there can be no doubt or denying that the observations / view points of the writer brought to bear/ aired are based on, as a professional, his own study and personal, independent understanding of, among others, the "bye-laws", the last one referred being of 2001 .
Be that as it could not have been expected to be otherwise, it may be noted that, the latest Model Bye-Laws brought in, in 2013,- though, as understood, stalled for the time being/ and yet to be given effect, -would ostensibly have every relevance. Hence, it might be  worthwhile making an insightful study. That should help in an incisive understanding and getting a true grip of what is in store, if and when the 2013 Model of Bye-laws is announced and made effective. Even so, in one's mind, there is a very vital and predominant doubt of all, of a grievous nature, having quite possibly far reaching repercussions and consequences, impinging the common interests of one and all concerned. That, in short, is , - as to what extent/ which of the new provisions, if at all, sought to be brought in, could/ are intended to be applicable / adopted and followed retroactively; so as to impact, adversely or otherwise,  the functioning/conduct of the affairs of the extant housing societies already registered and in place. To put it differently, each of those societies will be obliged to have a detailed exercise carried out, may be not without the help of a law expert, for identifying and deciding how best all or any of those bye-laws should be fitted into the already adopted bye-laws, with the least impediment or messing up. As this is a very intricate aspect, seemingly riddled with potentials for controversies galore, one strongly feels that the State government/its concerned authorities   ought to , if not already done, even now/beforehand,  mindfully consider and as far as feasible, make the ‘intention’ clear  on the indicated and other related worrisome aspects. 
KEY NOTE: On a tentative perusal of the new Bye-laws (2013), as is noted, there are quite many of its contents,  which warrant a deep study/application of mind by one and all concerned . Apart from the governmental experts, the advising experts at large, in the interests of selves or own clientele, need to do so and come out with a comprehensive unbiased/impartial opinion /viewpoints; also share with the rest openly, the earliest, the better.  
(Left open/ Welcome to ‘EDIT’ the foregoing, with a public -centric outlook as earnestly expected)

maharashtra co-op housing society bye laws 2013


How To Deal With Your
Co-operative Housing Society
 Advocate Vinod Sampat

Leading expert in CHS matters will cover: Unauthorised constructions & extensions; Misuse of power by Management Committee; Exorbitant transfer fees & donations; Burning issue of car parking; Repairs, renovations, leakages - maintenance issues, etc.; Redevelopment concerns; Conveyance

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